The Cabinet of Ministers on March 15 continued its attempts to fire Artem Sytnyk, the head of the National Anti-Corruption Bureau of Ukraine (NABU), before his authority expires in 2022.
The Cabinet submitted a revised draft law to parliament that would dismiss Sytnyk and allow President Volodymyr Zelensky to control the selection of a new NABU chief. The legislation is a revised version of a bill submitted by the Cabinet on Feb. 15.
Both bills are seen by anti-corruption activists as an attempt by Ukraine’s corrupt establishment to destroy the NABU’s independence. This may further disrupt Ukraine’s cooperation with the International Monetary Fund (IMF), which has included the bureau’s independence in its conditions for future lending.
“The Cabinet and Zelensky’s lawmakers are assaulting the NABU again, which undermines the agency’s independence and cooperation with foreign partners,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, said on March 16. “While Zelensky promises to ambassadors and other partners not to touch the NABU, they see renewed assaults on the anti-corruption institution and every new assault is worse and more pathetic than the previous ones.”
The Cabinet and the President’s Office did not respond to requests for comment.
Essence of the bill
The new bill explicitly seeks to fire Sytnyk before his powers expire in 2022. The previous version envisaged Sytnyk’s dismissal implicitly by stipulating that his first deputy Gizo Uglava would become the acting head of the NABU.
A new head of the NABU would be chosen by a commission of six members. Three would be delegated by the president-controlled National Security and Defense Council and three by the Cabinet, according to the new bill.
The Cabinet delegates would be chosen from a list of people recommended by international organizations that cooperate with Ukraine in anti-corruption efforts. Appointing a new bureau chief would require the support of at least four of the six members.
“In practice this means that commission members delegated by (Ukraine’s) foreign partners will not have a decisive role in the process because their vote will not be crucial for making a decision,” the Anti-Corruption Action Center said on March 16.
The anti-graft watchdog also argued that the National Defense and Security Council’s participation in the NABU chief’s appointment was not stipulated by the Constitution and could delegitimize the process.
The previous version of the bill called for three commission members to be delegated by the National Security and Defense Council and six additional members, including three foreign experts, to be chosen by the Cabinet.
Under the new bill, foreign experts would participate in the selection of a NABU chief only once and subsequently a new chief would be chosen without their participation. This means that, if a new NABU head turns out to be disloyal, they can be easily fired and replaced with someone more pliable, the Anti-Corruption Action Center said.
The watchdog also argued that firing Sytnyk before 2022 under the new bill would be unlawful. The Anti-Corruption Action Center said that Sytnyk can only be fired on an exhaustive list of grounds stipulated by the NABU law, which the Cabinet bills don’t include.
Olena Shcherban, a legal expert at the Anti-Corruption Action Center, told the Kyiv Post that the new bill had been submitted unlawfully because parliamentary procedure does not allow the Cabinet to change the text of the bill in such a way.
Rationale for the bills
The current efforts to fire Sytnyk are a reaction to the NABU’s high profile corruption probes of Zelensky’s deputy chief of staff Oleh Tatarov and embezzlement during the government’s COVID-19 vaccine purchases, according to sources familiar with the situation. The sources spoke on condition of anonymity because they were not authorized to speak to the press.
The Cabinet claims that its bills aim to bring the NABU in line with Constitutional Court rulings as part of talks with the IMF. However, the legislation may have the opposite effect, further disrupting lending from the institution, which has set NABU independence as a key precondition for future loans.
The IMF mission concluded on Feb. 13 that Ukraine needs to show more progress before it can receive another $700 million tranche under the existing stand-by lending arrangement.
In 2020 the Constitutional Court canceled then-President Petro Poroshenko’s 2015 decree to appoint Sytnyk as head of the bureau and struck down clauses of the NABU law that give the president a role in appointing the head of the bureau.
The measures were criticized by legal experts and anti-corruption activists as an effort by corrupt actors to take revenge on the NABU by providing an excuse for firing Sytnyk. Independent lawyers cast doubt on the legality of the Constitutional Court rulings.
While the Constitutional Court rulings ostensibly sought to diminish presidential powers, the Cabinet’s two recent bills would allow the president to control the selection of the bureau’s leadership.
